Defendant was convicted of the crime of murder in the first degree and was sentenced to suffer the penalty of death. He appeals from the judgment and from an order denying his motion for a new trial.
The sole defense of appellant was insanity. The only point in the case which seems to call for a discussion is raised by appellant's objection and exception to the thirteenth instruction given by the court at the request of the prosecution, *Page 338 which is as follows: "You are not to consider whether or not the defendant is insane at the present time, but you are to consider him as now sane. A person charged with crime cannot be legally tried for such crime, unless he be sane at the time of the trial. The defendant has presented the issue to you that, at the very time of the alleged commission of the homicide, he was insane. As I have already told you, the burden of proving his insanity at that time by a preponderance of evidence rests upon him, because the law presumes he was then sane." If this instruction must be construed as telling the jury that in determining whether or not the appellant was insane at the time of the commission of the alleged crime they could not consider any evidence tending to show that he was insane at the time of the trial, it is erroneous. It is the well-established rule that in determining whether at a certain date a person was insane, a jury may consider his acts, conduct, appearance, etc., prior to and after the said date, and that, if he is on trial for a crime alleged to have been committed at such date, evidence of his insanity at the time of his trial may be considered. (1 Greenleaf on Evidence, sec. 42; People v. Farrell, 31 Cal. 576; Estate of Toomes,54 Cal. 516;1 People v. Lee Fook, 85 Cal. 300.) But an instruction in the exact language of the one above quoted was held not to be cause for reversal by this court in at least three cases, —People v. Schmitt, 106 Cal. 48; People v. McCarthy, 115 Cal. 255; and People v. Donlan, 135 Cal. 489. And it was held in those cases that the instruction related only to the question whether or not the defendant was in a proper condition — as to his present sanity or insanity — to be put on his trial for the main offense. It is provided in the Penal Code (secs. 1367 et seq.) that a person while he is insane cannot be tried for a public offense, and that if, when an action is called for trial, there is a doubt as to the present sanity of the defendant, the court must suspend the main trial and submit the question of his present sanity to a jury called for that special purpose. And in the cases above cited it was held that an instruction similar to the one now under review referred only to those provisions of the code, and merely informed the jury that it was for the court to *Page 339 determine whether the defendant was in a condition to be tried, and that, for the purpose of proceeding with the trial, he was to be considered as at present sane. In People v. McCarthy, 115 Cal. 255, the court said that the instruction should be regarded "as doing no more than informing the jury that the issue submitted to them was that of defendant's sanity at the date of the homicide; and that, for the purposes of the trial, he was to be considered sane, since only a sane man could be competently put upon trial for an offense." While therefore the instruction in question is not to be commended, and might as well have been omitted, still, following the views expressed in the cases above cited, we do not think that giving it calls for a reversal. The evidence of appellant on the subject of sanity at the time of the homicide was not specially directed to his state of mind at the time of the trial, and it does not appear that any importance was attached to his mental condition at the latter period; for his counsel did not ask the court to instruct the jury that evidence tending to show his insanity at the time of the trial should be considered by them in determining whether he was insane at the time of the homicide.
There are some other points made by appellant, but no one of them is available for a reversal, and they do not call for special notice. It is enough to say that there was no error in giving the fifth, tenth, and eleventh instructions asked by the people, or in refusing the sixteenth, thirty-fourth, forty-second, forty-fourth, fifty-fourth, and fifty-sixth instructions asked by appellant, or in modifying what is called in the brief the fifty-fifth instruction asked by him and found at folios 756 and 759 of the transcript, or any substantial error in any ruling on the admissibility of evidence or on any other subject.
The judgment and order appealed from are affirmed.
Shaw, J., Angellotti, J., Van Dyke, J., and Lorigan, J., concurred.
1 35 Am. Rep. 83.